CRISIS EN LAS INSTITUCIONES DE LA SOCIEDAD

Legitimizing Legal Norms Through Doctrinal Coherence

It is asserted that the critical role of appellate courts is to correct trial court error so that “justice is done.” Rule 52(a), with its opera- tive terms subject to varying interpretation and application, gives appellate courts discretion in assessing when factual error has oc- curred to correct circumstances in which justice has not been done. Through Rule 52(a) interpretation and fact typology, appellate courts protect substantive rights while legitimizing substantive norms.

1. Appellate Court Interpretation of Rule 52(a) and Fact Typology Should Seek to Correct Trial Court Error to Protect Substantive Rights

One believing that, above all, appellate courts have the responsi- bility to protect litigants against trial court error views Rule 52(a) ambiguities and fact typology as essential. Indeed, Rule 52(a) implic- itly recognizes that appellate courts have a “legitimacy advantage” given their experience and authority in considering whether the law has been appropriately articulated and applied. If facts found by the trial court lead to erroneous application of the law, substantive rights are at risk. Thus, to fulfill their responsibility as a “check” on the lower courts, appellate courts should have the flexibility Rule 52(a) and fact typology allows.

Despite the near impossibility of articulating with precision when “clear error” has occurred, appellate courts are nevertheless suffi- ciently guided in their review of trial court findings. The “definite and firm clear conviction that a mistake was made” principle calls for appellate exercise of the most sober judgment. That principle ade- quately ensures that appellate courts engage in fact review in a manner which respects the trial court’s authority, competence, and systemic efficiencies. Through the “definite and firm conviction” prin- ciple, Rule 52(a)’s legitimacy as a procedural norm is preserved.

Appellate review of documentary evidence should also remain flexible to correct error and protect substantive interests. Where wit-

ness demeanor or credibility is not in issue or where documentary evidence is not in dispute, appellate courts should have the authority to determine, on a case-by-case basis, instances in which they should exercise heightened review.252 _{Heightened review on a case-}

by-case basis also allows appellate courts to carefully consider any possible adverse impacts upon administrative efficiency or comity between courts.

Furthermore, contrary to some concerns, advancements in tech- nology may not lead to expanded appellate review of documentary evidence. First, even with advancements which make review of trial court processes more efficient, it still takes a great deal of time and effort. Second, based on current surveys, appellate judges are still re- luctant to make credibility and demeanor determinations viewed on videotape (appreciating the importance of “close experience” needed to make such judgments).253 _{In addition, there is a recognition that}

even the most technologically equipped courtroom may fail to capture by video important events, attendants, or occurrences: the audience; all jurors; a fleeting expression by a judge, juror, lawyer, or litigant; or verbal and nonverbal behavior (such a witness’s leg, behind the stand, shaking as he testifies). Importantly, some appellate judges recognize values of decisional finality and administrative efficiency— jurisprudential interests which video or digital documentation as a justification for heightened review do nothing to advance.254

2. Appellate Court Interpretation of Rule 52(a) and Fact Typology Provide Doctrinal Coherence

Appellate court responsibility to give coherence to legal norms also requires the flexibility Rule 52(a) interpretation and fact typol- ogy affords.255 _{While Rule 52(a) provides important guidance as to}

the degree of deference to be accorded factual findings, certain facts

are qualitatively distinct. As was the case in Equality Foundation, a trial court may articulate findings of fact in a manner which ven- tures into lawmaking. Appellate courts must be able to discern con- stitutional, legislative, ultimate, or otherwise mixed findings of fact which purport to act as normative propositions. Such facts must be rejected, modified, or otherwise given their proper place within the context of existing legal doctrine. In this regard, a strict reading of

252. MOORE,supra note 106, at ¶ 52.04 (Rule as written supports broader review of findings based on nondemeanor testimony).

253. See Chua, supra note 133, at 611; Lederer, supra note 136, at 260.

254. See Lederer, supra note 136, at 261; Owen & Mather, supra note 137, at 413. 255. In the authority conferred upon appellate court articulation of the law, it is said that appellate courts enjoy a legitimacy advantage over trial courts. Monaghan, supra note 96, at 263.

Rule 52(a) does not adequately ensure that appellate courts are ulti- mately responsible to say what the law is.

Nor would a strict reading of Rule 52(a) enhance the administra- tive efficiencies or comity created by giving appellate courts the au- thority to give legal norms consistency. For example, it is quite pos- sible that two district judges within the same circuit would come to vastly different conclusions on the evidence presented in Equality Foundation. Conferring the deference suggested by Rule 52(a) could theoretically result in conflicting laws within each circuit. Such an outcome would likely lead to an increase in appeals to resolve intra- circuit conflicts.256 _{Thus, appellate interpretation of Rule 52(a) and}

its use of fact typology give doctrinal coherence to legal norms, pre- serve system resources, and promote intracircuit comity.

3. Summary

The recognition that facts as well as documentary evidence can be qualitatively different case to case and the fugitive meaning of clear error are conditions best described as either unavoidable or worth living with. Any detriments to decisional rule legitimacy, efficiency, and comity which arise by appellate courts’ treatment of Rule 52(a) are outweighed by the need to correct lower court error, protect sub- stantive rights, and give coherence to and legitimize legal norms. Rights and obligations as they relate to religious expression, speech, privacy, commerce, race, gender, property, and criminal justice merit assurance that trial courts appropriately engage in fact finding “so to preserve the precious liberties established and ordained by the Con- stitution.”257 _{Rule 52(a) is fluid, notflawed, and some argue it should}

remain that way.

B. Appellate Court Interpretation of 52(a) and Fact Typology